Professional Documents
Culture Documents
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[2019] 5 CLJ Alma Nudo Atenza v. PP & Another Appeal 781
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782 Current Law Journal [2019] 5 CLJ
of the first appellant. On the issue of trafficking, the trial judge ruled that in A
view of s. 37A of the DDA, the prosecution was allowed to invoke another
presumption under s. 37(da)(xvi) as the weight of the methamphetamine
exceeded 50g. Hence, the first appellant was convicted and charged and
sentenced to death. The second appellant in the second appeal, a Thai
national, was found to have brought a bag with her from Bahrain containing B
693.4g of cocaine and was thus charged with trafficking in dangerous drugs
under s. 39B(1)(a) of the DDA. The High Court observed that s. 37A of the
DDA would allow the use of double presumptions, namely, the
presumptions under s. 37(d) and (da) could be used together to prove
‘possession and knowledge’ and thereafter to prove ‘trafficking.’ The High C
Court Judge found that the elements of custody and control against the
second appellant were proven, thus s. 37(d) applied and the second appellant
was presumed to have possession and knowledge of the drugs. Further, since
the weight of the cocaine exceeded the statutory stipulated weight, it was also
ruled that s. 37(da)(ix) also applied. The High Court held that the second
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appellant failed to adduce evidence to rebut the presumptions under s. 37(d)
and (da) of the DDA and accordingly, the second appellant was found guilty
as charged and sentenced to death. Aggrieved, both the appellants appealed
respectively against the said decisions. The Court of Appeal dismissed both
the appellants’ appeals. Before this court, both the appellants focused their
submissions solely on the constitutionality of s. 37A of the DDA, which E
appeared to allow the use of double presumptions to find possession as well
as trafficking for a charge under s. 39B of the DDA. The appellants’ main
ground for challenging the validity of s. 37A was based on the principle of
separation of powers. The appellants submitted (i) under art. 74(1) of the FC,
Parliament is empowered only to make laws; (ii) under art. 121(1), judicial F
power is vested exclusively in the courts; (iii) in the case of Muhammed
Hassan v. PP (‘Muhammed Hassan’), the Federal Court declared that using the
presumption of possession to invoke the presumption of trafficking under
s. 37 of the DDA was harsh, oppressive and thus impermissible; (iv) once
the Federal Court had exercised judicial power on the matter, the Parliament G
could not interfere with the exercise by amending the DDA to legalise what
had been declared illegal; and (v) by enacting s. 37A to overrule the decision
of Muhammed Hassan, Parliament had exercised the judicial power of
declaring law. The second ground of challenge raised by the appellants was
based on arts. 5 and 8 of the FC. The appellants submitted that (i) art. 5(1)
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includes the right to a fair trial, which encompasses both procedural and
substantive fairness; (ii) for all intents and purposes, s. 37A of the DDA has
the effect of reversing the burden onto an accused to prove his or her
innocence; (iii) where double presumptions are applied, it has been held in
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[2019] 5 CLJ Alma Nudo Atenza v. PP & Another Appeal 783
A therefore be in tandem with the concept of rule of law and not rule by
law. A central tenet of the rule of law is the equal subjection of all
persons to the ordinary law. People should be ruled by the law and
be able to be guided by it. Thus, the law must be capable of being
obeyed. (paras 98, 101 & 103)
B (5) Section 37A of the DDA begins with the phrase ‘notwithstanding any
written law or rule of law.’ The words ‘rule of law’ in s. 37A refer
to implied ancillary rules, such as the rules of procedure or evidence.
It does not purport to exclude the rule of law as a legal concept. If it
were to be interpreted otherwise, then that would be a rule by law and
C could not be within the ambit of the term ‘law’ in art. 5(1) of the FC
and hence unconstitutional. The principle of the rule of law, being a
constitutional fundamental, could not be abrogated by mere statutory
words. Accordingly, art. 5(1) which guarantees that a person shall not
be deprived of his life or personal liberty save in accordance with law
D envisages a State action that was fair both in point of procedure and
substance. The fundamental principle of presumption of innocence,
long recognised at common law, was included in the phrase ‘in
accordance with law’. However, the presumption of innocence is
subject to implied limitations. A degree of flexibility was therefore
required to strike a balance between the public interest and the right
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of an accused person. (paras 108-110 & 112)
(6) When any State action is challenged as violating a fundamental right,
such as the right to life or personal liberty under art. 5(1), art. 8(1)
would at once be engaged such that the action must meet the test of
F proportionality. Proportionality is an essential requirement of any
legitimate limitation of an entrenched right. Proportionality calls for
the balancing of different interests. In the balancing process, the
relevant considerations include the nature of the right, the purpose for
which the right was limited, the extent and efficacy of the limitation,
and whether the desired end could reasonably be achieved through
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other means less damaging to the right in question. The presumption
of innocence is by no means absolute. Derogations or limits to the
prosecution’s duty to prove an accused’s guilt beyond a reasonable
doubt are carefully circumscribed by reference to some form of
proportionality test. The application of the proportionality test in this
H context strikes the appropriate balance between the competing
interests of an accused and the State. The doctrine of proportionality
and the all pervading nature of art. 8 form part of the common law of
Malaysia, developed by our courts based on a prismatic interpretation
of the FC without recourse to case law relating to the European
I Convention of Human Rights. As such, the appellants’ assertion that
786 Current Law Journal [2019] 5 CLJ
from the general rule, which could not be justified and was A
disproportionate to the legislative objective it served. It was far from
clear that the objective could not be achieved through other means less
damaging to the accused’s fundamental right under art. 5. In light of
the seriousness of the offence and the punishment it entailed, the
unacceptably severe incursion into the right of the accused under B
art. 5(1) was disproportionate to the aim of curbing crime, hence failed
to satisfy the requirement of proportionality housed under art. 8(1).
Accordingly, s. 37A was unconstitutional for violating art. 5(1) read
with art. 8(1) of the FC. The impugned section was hereby struck
down. Since there was no challenge to the use of a single presumption C
in these appeals, the invocation of s. 37(d) by the trial judges did not
cause any miscarriage of justice to the detriment of the appellants.
Hence, this court hereby quashed the convictions and sentences of
both the appellants under s. 39B of the DDA and hereby substituted
their respective convictions to one of possession under s. 12(1) and
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punishable under s. 39A(2) of the DDA. (paras 150-153)
Bahasa Malaysia Headnotes
Isu utama dalam rayuan-rayuan ini adalah kesahihan perlembagaan
s. 37A Akta Dadah Berbahaya 1952 (‘ADB’) merujuk pada per. 5, 8 dan 121
Perlembagaan Persekutuan (‘PP’). Setiap perayu dalam kedua-dua rayuan E
dituduh dan disabitkan oleh dua hakim bicara berbeza atas pengedaran
dadah. Walau bagaimanapun, oleh kerana kedua-dua rayuan berdasarkan
satu isu yang sama dan penting, mahkamah ini mendengarnya bersekali.
Perayu pertama dalam rayuan pertama, seorang warganegara Filipina, telah
ditangkap membawa sebuah beg mengandungi 2556.4g methamphetamine di F
Lapangan Terbang Kuala Lumpur (‘KLIA’) dan dituduh dengan kesalahan
mengedar dadah berbahaya bawah s. 39B(1)(a) ADB. Hakim Mahkamah
Tinggi memutuskan bahawa (i) untuk elemen milikan, anggapan bawah
s. 37(d) ADB boleh digunakan terhadap perayu pertama; dan (ii) beg itu
bawah milikan dan kawalan perayu pertama dan terdapat keterangan
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menunjukkan pengetahuan oleh perayu pertama. Berkenaan isu pengedaran,
hakim bicara memutuskan mengikuti s. 37A ADB, pihak pendakwaan
dibenarkan menggunakan anggapan lain bawah s. 37(da)(xvi) kerana berat
methamphetamine melebihi 50g. Oleh itu, perayu pertama disabitkan dan
dijatuhkan hukuman mati. Perayu kedua dalam rayuan kedua, seorang
warganegara Thailand, didapati membawa beg dari Bahrain mengandungi H
693.4g kokain dan dengan itu dituduh mengedar dadah berbahaya bawah
s. 39B(1)(a) ADB. Mahkamah Tinggi, s. 37A ADB membenarkan
penggunaan anggapan berganda, iaitu anggapan bawah s. 37(d) dan (da) boleh
digunakan bersama-sama untuk membuktikan ‘milikan dan pengetahuan’ dan
seterusnya membuktikan ‘pengedaran’. Mahkamah Tinggi mendapati I
[2019] 5 CLJ Alma Nudo Atenza v. PP & Another Appeal 789
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790 Current Law Journal [2019] 5 CLJ
segi berat dadah untuk tujuan pengedaran (s. 37(da)). Berat keterangan A
yang diperlukan untuk menyangkal anggapan bergantung pada keadaan
setiap kes. Perkataan ‘shall’ dalam kedua-dua subseksyen menunjukkan
setiap anggapan adalah bersifat mandatori. Walau bagaimanapun,
perkataan ‘may’ dalam s. 37A mencadangkan bahawa penggunaan
kumulatif anggapan berganda atau berbilang adalah mengikut budi B
bicara. Tetapi hanya kerana ini mengikut budi bicara tidak ipso facto
terlepas daripada satu pemeriksaan rapi berperlembagaan.
(10) Kesan s. 37A atas operasi kedua-dua anggapan adalah (i) sebaik sahaja
pihak pendakwaan membuktikan tertuduh mempunyai jagaan dan
kawalan atas sesuatu yang mengandungi dadah berbahaya, tertuduh C
dianggap mempunyai milikan dan pengetahuan berkenaan dadah
bawah s. 37(d). ‘Deemed possession’ yang dianggap bawah s. 37(d)
kemudiannya dipakai untuk menggunakan anggapan pengedaran
bawah s. 37(da), jika kuantiti dadah yang terlibat melebihi had berat
statutori; (ii) s. 37A oleh itu membenarkan ‘anggapan atas anggapan’; D
dan (iii) oleh itu untuk pertuduhan pengedaran dadah, yang diperlukan
adalah untuk pihak pendakwaan membuktikan satu kes prima facie
untuk membuktikan jagaan dan kawalan oleh pihak tertuduh dan berat
dadah yang terlibat. Beban perundangan kemudiannya beralih pada
tertuduh untuk menyangkal anggapan-anggapan milikan dan
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pengetahuan (s. 37(d) dan pengedaran (s. 37(da) atas imbangan
kebarangkalian). Oleh itu, s. 37A prima facie melanggar
ketakbersalahan kerana membenarkan tertuduh disabitkan walaupun
keraguan munasabah masih wujud.
(11) Anggapan-anggapan bawah s. 37(d) dan (da) berkaitan tiga elemen F
penting kesalahan pengedaran dadah, iaitu milikan dadah,
pengetahuan mengenai dadah dan pengedaran. Sebaik sahaja inti pati-
inti pati penting kesalahan dianggap, tertuduh mempunyai beban
perundangan untuk menyangkal anggapan-anggapan atas imbangan
kebarangkalian. Ini satu hakisan serius terhadap anggapan
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ketakbersalahan bawah per. 5(1) PP. Tetapi kesan paling parah, iaitu
agak keras dan bersifat menindas, yang berbangkit daripada pemakaian
‘anggapan atas anggapan’ adakah anggapan elemen milikan bawah
s. 37(d) yang dipakai untuk menggunakan anggapan pengedaran bawah
s. 37(da) tanpa mempertimbangkan elemen milikan bawah s. 37(da)
memerlukan milikan ‘found’ dan bukan milikan ‘deemed’. Frasa H
‘sesiapa yang didapati mempunyai milikan’ melibatkan satu dapatan
afirmatif berdasarkan keterangan yang dikemukakan. Untuk
menggunakan anggapan pengedaran yang didapati bukan atas bukti
milikan tetapi anggapan milikan berdasarkan bukti jagaan dan
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[2019] 5 CLJ Alma Nudo Atenza v. PP & Another Appeal 795
Indira Nehru Gandhi v. Shri Raj Narain [1975] 2 SCC 159 (dist) A
J Raz, The Rule of Law and its Virtue (1977) 93 LQR 195 (refd)
Janapada Sabha Chhindwara v. The Central Provinces Syndicate Ltd [1970] 1 SCC 509
(refd)
Lee Kwan Woh v. PP [2009] 5 CLJ 631 FC (refd)
Liyanage v. The Queen [1967] 1 AC 259 (refd)
Maneka Gandhi v. Union of India AIR 1978 SC 59 (refd) B
Matadeen v. Pointu [1998] UKPC 9 (refd)
Medical Council of India v. State of Kerala (Writ Petition (C) No 178 & 231 of 2018)
(refd)
Muhammed Hassan v. PP [1998] 2 CLJ 170 FC (refd)
Ong Ah Chuan v. PP [1980] 1 LNS 181 PC (refd)
Ooi Kean Thong & Anor v. PP [2006] 2 CLJ 701 FC (refd) C
Pengarah Tanah dan Galian, Wilayah Persekutuan v. Sri Lempah Enterprise Sdn Bhd
[1978] 1 LNS 143 FC (refd)
PP v. Datuk Harun Hj Idris & Ors [1976] 1 LNS 180 HC (refd)
PP v. Gan Boon Aun [2017] 4 CLJ 41 FC (refd)
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PP v. Su Liang Yu [1976] 1 LNS 113 HC (refd)
R v. Johnstone [2003] UKHL 28 (refd)
R v. Kirby; ex p Boilermakers’ Society of Australia [1956] ALR 163 (refd)
R v. Lambert [2001] UKHL 37 (refd)
R v. Oakes [1986] 1 SCR 103 (refd)
R v. Whyte [1988] 51 DLR (4th) 481 (refd) E
R (Anderson) v. Secretary of State for the Home Department [2002] UKHL 46 (refd)
Rethana M Rajasigamoney v. The Government of Malaysia [1984] 1 CLJ 352; [1984]
1 CLJ (Rep) 323 FC (refd)
Semenyih Jaya Sdn Bhd v. Pentadbir Tanah Daerah Hulu Langat & Another Case [2017]
5 CLJ 526 FC (refd)
Shaw v. DPP [1962] AC 220 (refd) F
Sheldrake v. Director of Public Prosecutions; Attorney General’s Reference (No 4 of 2002)
[2005] 1 All ER 237 (refd)
Sivarasa Rasiah v. Badan Peguam Malaysia & Anor [2010] 3 CLJ 507 FC (refd)
S R Bhagwat v. State of Mysore [1995 6 SCC 16 (refd)
ST Sadiq v. State Of Kerala [2015] 4 SCC 400 (dist)
State v. Coetzee [1997] 2 LRC 593 (refd) G
State v. Makwanyane [1995] 1 LRC 269 (refd)
State Government of Negeri Sembilan & Ors v. Muhammad Juzaili Mohd Khamis & Ors
[2015] 8 CLJ 975 FC (not foll)
State of Haryana v. Karnal Coop Farmers’ Society Ltd [1993] 2 SCC 363 (refd)
Syarikat Banita Sdn Bhd v. Government of State of Sabah [1977] 1 LNS 125 FC (refd)
Tan Tek Seng v. Suruhanjaya Perkhidmatan Pendidikan & Anor [1996] 2 CLJ 771 CA H
(refd)
The State v. Khoyratty [2006] UKPC 13 (refd)
Titular Roman Catholic Archbishop of Kuala Lumpur v. Menteri Dalam Negeri & Ors
[2014] 6 CLJ 541 FC (not foll)
Victorian Stevedoring & General Contracting Co Pty Ltd v. Dignan [1932] ALR 22 (refd)
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Woolmington v. Director of Public Prosecutions [1935] AC 462 (refd)
Yeoh Tat Thong v. Government of Malaysia & Anor [1973] 1 LNS 180 FC (refd)
[2019] 5 CLJ Alma Nudo Atenza v. PP & Another Appeal 797
JUDGMENT
H
Richard Malanjum CJ:
Introduction
[1] The common and central issue in the present appeals is on the
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constitutional validity of s. 37A of the Dangerous Drugs Act 1952 (“DDA”),
with reference to arts. 5, 8, and 121 of the Federal Constitution (“FC”).
798 Current Law Journal [2019] 5 CLJ
[2] Each of the appellants in these two appeals was charged before and A
convicted by two different trial judges for drug trafficking under s. 39B of the
DDA. However, since both appeals were premised on one common and
crucial issue, we proceeded to hear them together while conscious of the fact
that, on merits, these two appeals might differ. We therefore heard
submissions on the common issue of these two appeals. B
[3] This is a unanimous judgment of the remaining judges of the court
delivered pursuant to s. 78(1) of the Courts of Judicature Act 1964.
Mr Justice Balia Yusof bin Haji Wahi has since retired on 25 March 2019.
The Salient Facts
C
Criminal Appeal No. 05-94-05-2017(B) (“First Appeal”)
[4] The charge against the appellant in the first appeal (hereinafter “first
appellant” for ease of reference) read as follows:
Bahawa kamu pada 19 Ogos 2014 lebih kurang jam 2.00 pagi di Cawangan D
Pemeriksaan Penumpang 2 (CPP2) Balai Ketibaan Antarabangsa,
Lapangan Terbang Antarabangsa Kuala Lumpur (KLIA), di dalam negeri
Selangor Darul Ehsan telah didapati mengedar dadah berbahaya iaitu
Methamphetamine seberat 2556.4 gram dan dengan itu kamu telah
melakukan suatu kesalahan di bawah seksyen 39B(1)(a) Akta Dadah
Berbahaya 1952 yang boleh dihukum di bawah seksyen 39B(2) Akta yang E
sama.
[5] The first appellant, a national of the Republic of the Philippines,
travelled from Hong Kong to Malaysia by flight on 19 August 2014. Upon
her arrival at KLIA at about 2am, a customs enforcement officer (‘PW3’)
saw the first appellant in the queue and had her bag (‘P7’) scanned. Upon F
scanning, PW3 saw a suspicious image inside the bag. He requested a
customs officer (‘PW6’) to examine the bag further.
[6] On physical examination of the contents of the bag, PW6 discovered
that it contained several new handbags. He then removed one of the handbags
for scanning. PW3 saw a suspicious image inside the handbag. He requested G
PW6 to place the handbag back into the bag. The first appellant and the bag
were then brought to an examination room where they were handed over to
an investigating officer (‘PW7’).
[7] Instructed by PW7, PW6 conducted a search of the bag in the presence
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of the first appellant. The bag was found to contain clothings, shoes and nine
packages of handbags wrapped in clear plastic. Each handbag was found to
contain four packages, wrapped with yellow coloured tape and concealed
inside the inner back cover of each of the handbags. A total of 36 packages
were recovered from the nine handbags. Each package contained crystalline
substance. I
[2019] 5 CLJ Alma Nudo Atenza v. PP & Another Appeal 799
A [8] Using a test kit, PW6 found that the substance in each package tested
positive for methamphetamine. The substances were sent to the Chemistry
Department for analysis and were confirmed to contain in total 2556.4g of
methamphetamine.
Criminal Appeal No. 05-193-08-2017 (W) (“Second Appeal”)
B
[9] The charge against the appellant in the second appeal (hereinafter
“second appellant” for ease of reference) was as follows:
Bahawa kamu pada 1 Julai 2014 jam lebih kurang 8.30 malam di bilik
nombor 919, Arena Star Luxury Hotel, Jalan Hang Lekiu, di dalam
C Wilayah Persekutuan Kuala Lumpur telah didapati mengedar dadah
merbahaya iaitu Cocaine seberat 693.4g dan dengan itu telah melakukan
kesalahan dibawah Seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 yang
boleh dihukum di bawah Seksyen 39B(2) Akta yang sama.
[10] The second appellant, a Thai national, travelled by flight from
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Bangkok to Bahrain on 26 June 2014, and thereafter from Bahrain to Kuala
Lumpur via Abu Dhabi on 29 June 2014 on Etihad Airways. At the Bahrain
airport, the second appellant checked in a bag (exh. P34) for her flight to
Kuala Lumpur. On 30 June 2014, upon her arrival at Kuala Lumpur
International Airport (KLIA), the second appellant lodged a complaint
regarding the loss of the bag to the airport authorities. The second appellant
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gave her personal information and the address where she would be staying,
which was Room 919 in Hotel Arena Star Luxury, Kuala Lumpur.
[11] On 1 July 2014, the bag arrived at KLIA and was handed over to the
Lost and Found Section of Malaysia Airlines System (‘MAS’). Etihad
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Airways had requested MAS to arrange the delivery of the bag to the second
appellant. The bag had been labelled with a ‘rush’ tag (‘P28’), indicating the
second appellant’s name and the tag number.
[12] At about 4pm on the same day, an employee of bags handling
company (‘SP8’) brought the bag from the lost and found section to the
G arrival hall for scanning. During the scanning process, a customs officer
(‘SP4’) noticed a suspicious green image on the inside walls of the bag. He
contacted the KLIA customs enforcement team. SP10 led the enforcement
team to the scanning machine and received the bag from SP4.
[13] Having examined the bag, SP10 noticed the second appellant’s name
H on the tag and noted that the bag was in good condition but unlocked. SP10
requested SP8 to deliver the bag to the second appellant as planned. SP10
and some other customs officers followed SP8 to Hotel Arena Star Luxury
in a different vehicle.
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800 Current Law Journal [2019] 5 CLJ
[14] At the hotel, SP10 brought the bag to the hotel counter and met a hotel A
staff SP6, who telephoned the second appellant in Room 919 to collect her
bag. The second appellant came down to the hotel lobby, signed the receipt,
and took the bag from SP8. The second appellant then pulled the bag into
the elevator, while being followed by SP10 and three other officers. In the
elevator, SP10 saw the second appellant tore off the tag from the bag. B
[15] When the elevator reached the ninth floor, the second appellant exited
and went to Room 919. As she was about to open the room door, SP10
introduced himself. SP10 had also obtained the bag tag which was earlier on
torn off by the second appellant. The second appellant’s reaction was one of
shock. C
[16] In Room 919, SP10 instructed the second appellant to open the bag
for examination. After the second appellant unzipped the bag and removed
the items therein, SP10 found a black layer on the inside wall of the bag.
SP10 requested the second appellant to cut the layer with a knife, and found
white powder inside the black layer. D
[17] The second appellant and the bag were taken to the KLIA customs
enforcement office where SP10 made further inspections of the bag and
discovered a black frame. Around the black frame were found two packages
containing white powder. The white powder was sent to the Chemistry
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Department for analysis. After analysis, the white powder was confirmed to
contain 693.4g of cocaine.
Decisions Of The High Court
The First Appeal
F
[18] The learned trial judge in respect of this first appeal ruled that for the
element of possession, the presumption under sub-s. 37(d) of the DDA could
be invoked against the first appellant. The learned trial judge found that the
bag was under the custody and control of the first appellant. Such finding was
premised on the evidence that the tag was attached to the bag and the first
G
appellant was caught red-handed carrying the bag.
[19] The learned trial judge also found that there was evidence to indicate
the knowledge of first appellant. Such finding was based on how the drugs
were carefully and cunningly concealed in the inner layers of the handbags,
packed as if they were new and placed together with other items similarly H
packed. The learned trial judge therefore inferred an intention to avoid
detection and thereby knowledge. Indeed the learned trial judge concluded
that the only logical finding would be that the first appellant had knowledge
of the drugs she was carrying in the bag.
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[2019] 5 CLJ Alma Nudo Atenza v. PP & Another Appeal 801
A [20] On the issue of trafficking, the learned trial judge ruled that in view
of s. 37A the prosecution was allowed to invoke another presumption under
sub-s. 37(da)(xvi) as the weight of the methamphetamine exceeded 50g. The
trial judge found that the prosecution had proven the following overt acts:
(i) that the first appellant was conscious in the carrying or transporting of
B the drugs from Hong Kong to Malaysia by flight; and
(ii) that the concealment of the drugs was solely for the purpose of evading
detection.
[21] The learned trial judge therefore found a prima facie case made against
C the first appellant.
[22] In her defence, the first appellant said that while on holiday in
Thailand with her friend Jackelyn, she was offered an assignment from
Jackelyn’s boyfriend, Kevin, to carry diamonds from Hong Kong to
Malaysia. It was the first appellant’s account that the next day she flew to
D Hong Kong alone. On arrival in Hong Kong, she was picked up by one Mike
who on the following day brought her to the Hong Kong airport and checked
in the bag for her.
[23] The learned trial judge did not accept the defence of innocent carrier
advanced by the first appellant. The learned trial judge reasoned that no one
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would carry diamonds of colossal value in an unlocked checked-in bag. They
could have been stolen while in transit. It was also inferred that from the
conduct of the first appellant, the transaction was planned and well-executed
based on the frantic and fast-paced action taken. Meanwhile, the account
given by the first appellant in court was also ruled to be an afterthought in
F order to dissociate herself from the knowledge of the drugs.
[24] The learned trial judge also held that there were circumstances which
could have aroused the suspicion of the first appellant on what she was
carrying in the bag. Yet, she just ignored those facts indifferent to what she
was carrying and simply shut her eyes on the obvious. Applying therefore
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the principle of wilful blindness, the first appellant was taken to know that
she was carrying drugs. Hence, the first appellant was convicted as charged
and sentenced to death.
The Second Appeal
H [25] The High Court observed that s. 37A of the DDA would allow the use
of double presumptions, namely, the presumptions under sub-ss. 37(d) and
(da) could be used together to prove “possession and knowledge” and
thereafter to prove “trafficking”.
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802 Current Law Journal [2019] 5 CLJ
[26] In respect of the presumption under sub-s. 37(d), the learned trial A
judge noted that the prosecution needed only to prove that the second
appellant had the custody and control over the bag in order for the second
appellant to be presumed to have possession and knowledge of the dangerous
drug unless proven otherwise. The learned trial judge found custody and
control on the following facts: B
(i) that at the time of arrest, the second appellant was holding the bag;
(ii) that the second appellant removed the bag tag while still in the elevator;
(iii) that the second appellant’s name was shown on the bag tag and the
passenger information document; C
(iv) that the second appellant checked in the bag herself at the Bahrain
airport;
(v) that the second appellant made a complaint at KLIA after failing to
locate the bag, and provided her hotel details for the bag to be delivered D
to her immediately upon arrival;
(vi) that the second appellant received the bag at the hotel lobby and brought
it to the room; and
(vii) that the contents of the bag (other than the dangerous drugs) were the
E
second appellant’s personal effects, such as clothings.
[27] The learned trial judge took into account the fact that the bag was
reported missing and the possibility of having been tampered with since the
bag was unlocked. However, based on the evidence as a whole, it was found
that the fact that the bag was not with the second appellant for a day did not F
negate the custody and control on her part. It was highlighted that the drugs
were not easily found when the bag was opened. On the contrary, the drugs
were hidden in a secret compartment in the bag, namely, within the black
frame which was only found when the side of the bag was cut with a knife.
The learned trial judge considered that it was not possible within a short time
G
for any other persons to have prepared such a frame to fit the size of the bag
and for two packages to fit the size of the frame.
[28] Since the elements of custody and control were proven, it was ruled
that sub-s. 37(d) applied and the second appellant was presumed to have
possession and knowledge of the drugs. Further, since the weight of the H
cocaine exceeded the statutory stipulated weight, it was then ruled that sub-
s. 37(da)(ix) also applied. As such, the second appellant was presumed to be
trafficking the drugs.
I
[2019] 5 CLJ Alma Nudo Atenza v. PP & Another Appeal 803
A [29] Having found that a prima facie case had been established by the
prosecution, the learned trial judge called for the first appellant to enter
defence. The basis of the second appellant’s defence case was that she had
no knowledge of the drugs in the bag. The learned trial judge however
pointed out the inconsistencies in the second appellant’s defence case,
B including:
(i) that it was the second appellant’s case that she went to Bahrain for
holiday yet it was inconsistent with her testimony during cross-
examination that she went there to find work;
(ii) that the second appellant could not recall the hotel or the name of the
C
beach she purportedly visited in Bahrain;
(iii) that the second appellant had stopped working as a bartender, where she
had previously earned a monthly salary of RM700. It was difficult to
accept that the second appellant, who has a six-year old child, could
D afford the high cost for the alleged holiday; and
(iv) that the second appellant’s account that the money for her holiday in
Bahrain was given by a friend, Som, from her previous workplace, was
doubtful. Som was not called to give evidence.
[30] The learned trial judge rejected the second appellant’s defence as a
E
bare denial and held that the second appellant had failed to adduce evidence
to rebut the presumptions under sub-ss. 37(d) and (da) of the DDA.
Accordingly, the learned trial judge found the second appellant guilty as
charged and sentenced her to death.
[34] On the issue of double presumptions, the Court of Appeal noted that A
it was not in dispute that the amending Act inserting s. 37A into the DDA
was a valid Act enacted by Parliament. Further, it was considered that
despite the invocation of the presumptions, the onus of proving the case
beyond reasonable doubt still rests on the prosecution. At any rate before a
presumption can be invoked, the prosecution must adduce positive evidence B
of the relevant fact or facts. As such, the rights of the defence are maintained
since the opportunity to rebut the presumption is not taken away. Hence, the
Court of Appeal held that the use of double presumptions was not
unconstitutional and did not violate the presumption of innocence.
[35] On the defence of innocent carrier, the Court of Appeal agreed with C
the finding and conclusion of the learned trial judge. It was held that it was
not enough for the first appellant to merely assert the absence of knowledge.
If and when the circumstances arouse suspicion, the Court of Appeal opined
that it was incumbent upon the first appellant to make the necessary
inquiries. Accordingly, the appeal of the first appellant was dismissed. D
The Second Appeal
[36] The second appellant appealed on the ground that the learned trial
judge had erred in law and fact in finding custody and control.
[37] However, the Court of Appeal held that while no drugs might have E
been detected when the bag was checked in at Bahrain airport, it did not
mean that no drugs were present in the bag at that time. The Court of Appeal
noted that there were many such instances of such happening. But it is not
for the court to answer such question as to how the drugs escaped detection
at the airport of origin. F
[38] On the possibility of tampering, the Court of Appeal agreed with the
finding of the learned trial judge that considering the manner in which the
drugs were concealed inside the bag, it would not have been possible for
others to have placed the drugs in the bag in that manner within the time
period. There was also no evidence found to indicate others including any G
potential enemy, motivated to harm the second appellant by planting the
drugs in the bag. Anyway, the Court of Appeal considered that a person with
such a motive would not have gone to such extent of modifying the bag to
conceal the drugs. Such person or enemy would have placed the drugs in a
conspicuous place. H
[39] The Court of Appeal also observed that as the drugs were well
concealed, leaving the bag unlocked was just an excuse to say that someone
could have placed the drugs inside the bag in the event of the second
appellant being caught. Further, since the second appellant had checked the
bag and confirmed that it was in good condition upon receiving it at the hotel I
lobby, the Court of Appeal ruled out tampering as an issue.
[2019] 5 CLJ Alma Nudo Atenza v. PP & Another Appeal 805
A [40] The Court of Appeal also agreed with the learned trial judge on the
lack of credibility to the story that the second appellant travelled to Bahrain
for holiday using funds supplied by Som. Indeed, the Court of Appeal found
the defence of second appellant was a bare denial. It was incapable of casting
a reasonable doubt in the prosecution’s case or rebutting the presumption of
B knowledge on the balance of probabilities. The appeal was therefore
dismissed.
Decision Of This Court
[41] We are very conscious that there are several grounds of appeal
submitted for both these appeals. However, before us, learned counsel for
C
both the appellants focused his submissions solely on the constitutionality of
s. 37A of the DDA. The section appears to allow the use of double
presumptions to find possession as well as trafficking for a charge under
s. 39B of the DDA.
D [42] Thus, in this judgment, we will therefore mainly deal with the
impugned section. In the event we find there is no merit on the constitutionality
challenge, we will then, if necessary, proceed with the other grounds submitted
before making our ultimate decisions on the respective appeals.
History Of s. 37A Of The DDA
E
[43] Section 37 of the DDA lists out a number of presumptions. The two
presumptions that were invoked in the present appeals are in sub-ss. (d) and
(da), which are reproduced below for ease of reference:
Presumptions
F 37. In all proceedings under this Act or any regulation made thereunder:
…
(d) any person who is found to have had in his custody or under his
control anything whatsoever containing any dangerous drug shall,
until the contrary is proved, be deemed to have been in possession
G of such drug and shall, until the contrary is proved, be deemed to
have known the nature of such drug; ...
…
(da) any person who is found in possession of:
H …
(ix) 40grammes or more in weight of cocaine;
…
(xvi) 50 grammes or more in weight of Methamphetamine;
I otherwise than in accordance with the authority of this Act or any other
written law, shall be presumed, until the contrary is proved, to be
trafficking in the said drug; …
806 Current Law Journal [2019] 5 CLJ
[44] Prior to the insertion of s. 37A, in the case of Muhammed bin Hassan A
v. PP [1998] 2 CLJ 170; [1998] 2 MLJ 273, the accused was convicted for
drug trafficking under s. 39B of the DDA. The trial judge found that the
accused had failed to rebut the statutory presumptions in sub-ss. 37(d) and
(da) of the DDA on a balance of probabilities.
[45] The Federal Court drew attention to the distinction between the words B
“deemed” in sub-s. 37(d) and “found” in sub-s. 37(da). The former arises by
operation of law without necessity to prove how a particular state of affairs
is arrived at, whereas the latter connotes a finding made by a court after trial.
It was held that, in order to invoke the presumption of trafficking under
s. 37(da), the court must make an express affirmative finding that the accused C
was “in possession” of the drug based on evidence. Based on the clear and
unequivocal wording of the two subsections, the presumption of possession
under sub-s. 37(d) cannot be used to invoke the presumption of trafficking
under sub-s. 37(da). His Lordship Chong Siew Fai (Chief Judge Sabah and
Sarawak) said this at p. 190 (CLJ); p. 289 (MLJ): D
In view of the above differences, it would be unduly harsh and oppressive
to construe the automatic application of presumption upon presumption
as contended by the learned deputy public prosecutor – a construction
that ought to be adopted only if, upon the wordings of the two
subsections, such an intention of the Parliament is clear, which, in our
E
opinion, is not.
[46] The Federal Court also went on to express the view that the use of
presumption upon presumption would be harsh and oppressive. The court
said this at p. 194 (CLJ); p. 291 (MLJ):
In our view, on the wording of s. 37(da) as it stands, to read the F
presumption of possession (ie possession as understood in criminal law,
with knowledge) provided in s. 37(d) into s. 37 (da) so as to invoke against
an accused a further presumption of trafficking (ie presumption upon
presumption) would not only be ascribing to the phrase ‘found in
possession’ in s. 37(da) a meaning wider than it ordinarily bears but would
also be against the established principles of construction of penal statutes G
and unduly harsh and oppressive against the accused.
[47] Following the decision in Muhammed bin Hassan (supra), Parliament
tabled the Dangerous Drugs (Amendment) Act 2014, which introduced a
new s. 37A without any amendment to any of the wordings in the
H
presumption provisions. The legislative purpose in enacting s. 37A is to
permit the presumption in sub-s. 37(d) to be applied together with the
presumption in sub-s. 37(da) against an accused. It was explained at the
second reading of the Bill in the Dewan Rakyat (House of Representatives)
(per the Hansard of 4 December 2013) in this way:
I
[2019] 5 CLJ Alma Nudo Atenza v. PP & Another Appeal 807
validity of the section was challenged on the ground that Parliament did not A
have power to enact it under art. 74(1) of the FC. It was submitted that
pursuant to art. 4(4) of the FC the appellants ought to have sought leave from
the Federal Court to mount the present challenge.
[52] In response, learned counsel for the appellants submitted that the
appellants were not challenging the legislative competence of Parliament to B
enact s. 37A. The crux of the appellants’ argument was that, reading
art. 121(1) together with art. 74(1), Parliament was empowered to make law
and not to declare law. It was the appellants’ case that the enactment of
s. 37A was an impermissible act of declaring law. As such, it was contended
that the present challenge did not fall within art. 4(4) and that leave was not C
required.
Scope Of art. 4(4) Of The FC
[53] Article 4(3) of the FC reads as follows:
The validity of any law made by Parliament or the Legislature of any State D
shall not be questioned on the ground that it makes provision with respect to any
matter with respect to which Parliament or, as the case may be, the Legislature of
the State has no power to make laws, except in proceedings for a declaration
that the law is invalid on that ground or:
(a) if the law was made by Parliament, in proceedings between the E
Federation and one or more States;
(b) if the law was made by the Legislature of a State, in proceedings
between the Federation and that State. (emphasis added)
[54] Article 4(4) which relates to the ground mentioned in art. 4(3)
provides that: F
Proceedings for a declaration that a law is invalid on the ground mentioned in Clause
(3) (not being proceedings falling within paragraph (a) or (b) of the Clause) shall
not be commenced without the leave of a judge of the Federal Court; and the
Federation shall be entitled to be a party to any such proceedings, and
so shall any State that would or might be a party to proceedings brought G
for the same purpose under paragraph (a) or (b) of the Clause.
(emphasis added)
[55] Thus, art. 4(4) applies only where the validity of a law is challenged
on the ground that it makes provision with respect to a matter on which
Parliament or the State Legislature has no power to make laws. The central H
question relates to the subject matter of the impugned law. In Gin Poh
Holdings Sdn Bhd v. The Government of the State of Penang & Ors [2018] 4 CLJ
1; [2018] 3 MLJ 417 at para. [32]), this court has clarified that the ground
of challenge referred to in arts. 4(3) and 4(4) comprises the following
situations: I
[2019] 5 CLJ Alma Nudo Atenza v. PP & Another Appeal 809
A … an impugned law deals with a matter with respect to which the relevant
legislative body has no power to make law if:
(a) Parliament made law on a matter not within the Federal List;
(b) the State Legislature made law on a matter not within the State
List;
B
(c) Parliament made law on a matter within the State List pursuant to
art 76, but failed to comply with the requirements in the said Article;
or
(d) the State Legislature made law on a matter within the Federal List
pursuant to art 76A(1), but failed to comply with the requirements
C
in the said Article …
[56] Leave from the Federal Court is only required in proceedings for a
declaration that a law is invalid on that specific ground. In such proceedings,
the Federal Court has exclusive original jurisdiction to determine the matter.
D
(See: art. 128(1)(a)).
[57] There are of course other grounds on which the validity of a law may
be challenged. For instance, a law may be invalid because it is inconsistent
with certain provisions in the FC (art. 4(1)), or a State law may be invalid
because it is inconsistent with a Federal law (art. 75). The court’s power to
E declare a law invalid on any of these other grounds “is not subject to any
restrictions, and may be exercised by any court in the land and in any
proceeding whether it be started by the Government or by an individual”.
(See: Ah Thian v. Government of Malaysia [1976] 1 LNS 3; [1976] 2 MLJ 112
at p. 113).
F [58] A broader reading of art. 4(4), however, was adopted in Titular Roman
Catholic Archbishop of Kuala Lumpur v. Menteri Dalam Negeri [2014] 6 CLJ
541; [2014] 4 MLJ 765. In that case, the validity of provisions in various
State Enactments seeking to control and restrict the propagation of non-
Islamic religious doctrines and beliefs among Muslims was challenged in the
G High Court on the ground that they contravened art. 11 of the FC. The
Federal Court held that such a challenge fell within the scope of art. 4(3) and
(4) of the FC and ought not to have been entertained by the High Court.
[59] The decision in Titular Roman Catholic Archbishop of Kuala Lumpur
(supra) was followed in State Government of Negeri Sembilan & Ors v.
H Muhammad Juzaili Mohd Khamis & Ors [2015] 8 CLJ 975; [2015] 6 MLJ 736,
where the validity of a State Enactment was challenged on the ground that
it offended the fundamental liberties in arts. 5, 8, 9 and 10 of the FC.
Similarly, the Federal Court held that the challenge could only be made via
the specific procedure provided for under art. 4(3) and (4) of the FC.
I
810 Current Law Journal [2019] 5 CLJ
I
[2019] 5 CLJ Alma Nudo Atenza v. PP & Another Appeal 811
A existing courts shall continue to function, the constitution itself may even
omit any express provision conferring judicial power upon the judicature.
Nevertheless it is well established as a rule of construction applicable to constitutional
instruments under which this governmental structure is adopted that the absence of
express words to that effect does not prevent the legislative, the executive and the
judicial powers of the new state being exercisable exclusively by the legislature, by the
B executive and by the judicature respectively. (emphasis added)
(See also: Liyanage v. The Queen [1967] 1 AC 259 at p. 287).
[69] The separation of powers between the Legislature, the Executive, and
the Judiciary is a hallmark of a modern democratic State. (See: The State v.
C Khoyratty (supra) at para. [29]; DPP v. Mollison (No 2) [2003] UKPC 6 at para.
[13]; R (Anderson) v. Secretary of State for the Home Department [2002] UKHL
46 at para. [50]). Lord Steyn in The State v. Khoyratty (supra) at para. [12]
succinctly said this:
The idea of a democracy involves a number of different concepts. The first
D is that the people must decide who should govern them. Secondly, there
is the principle that fundamental rights should be protected by an impartial
and independent judiciary. Thirdly, in order to achieve a reconciliation
between the inevitable tensions between these ideas, a separation of
powers between the legislature, the executive, and the judiciary is
necessary.
E
[70] Thus, the separation of powers is not just a matter of administrative
efficiency. At its core is the need for a check and balance mechanism to avoid
the risk of abuse when power is concentrated in the same hands. (See: James
Madison, “The Structure of the Government Must Furnish the Proper Checks and
Balances Between the Different Departments”, The Federalist Papers No. 51
F
(1788)).
[71] Between the three branches of Government, “all the parts of it form
a mutual check upon each other. The three parts, each part regulates and is
regulated by the rest”. (See: Blackstone, Commentaries (Vol. 1), 1765/1979 at
p. 154). The separation of powers provides a brake to the exercise of
G
Government power; the institutions are designed “not only to co-operate but
to conflict, as part of the pulley of checks and balances”. (See: L Thio, A
Treatise on Singapore Constitutional Law (Singapore: Academy Publishing, 2012)
at p. 160).
H [72] This court has, on several occasions, recognised that the principle of
separation of powers, and the power of the ordinary courts to review the
legality of State action, are sacrosanct and form part of the basic structure of
the FC. (See: Semenyih Jaya Sdn Bhd v. Pentadbir Tanah Daerah Hulu Langat
& Another Case [2017] 5 CLJ 526; [2017] 3 MLJ 561 at para. [90], Indira
Gandhi Mutho v. Pengarah Jabatan Agama Islam Perak & Ors And Other Appeals
I
[2018] 3 CLJ 145; [2018] 1 MLJ 545 at paras. [48], [90]).
814 Current Law Journal [2019] 5 CLJ
[73] In fact, courts can prevent Parliament from destroying the “basic A
structure” of the FC. (See: Sivarasa Rasiah (supra) at para. [20]). And while
the FC does not specifically explicate the doctrine of basic structure, what
the doctrine signifies is that a parliamentary enactment is open to scrutiny
not only for clear-cut violation of the FC but also for violation of the
doctrines or principles that constitute the constitutional foundation. B
[74] The role of the Judiciary is intrinsic to this constitutional order.
Whether an enacted law is constitutionally valid is always for the courts to
adjudicate and not for Parliament to decide. As rightly stated by Professor
Sir William Wade (quoted by this court in Indira Gandhi at para. [35]):
C
… it is always for the courts, in the last resort, to say what is a valid Act
of Parliament; and that the decision of this question is not determined
by any rule of law which can be laid down or altered by any authority
outside the courts.
Legislative Power
D
[75] It is against the background of these fundamental principles that the
appellants’ challenge falls to be considered. The appellants rely on three
Indian authorities in support of the contention that Parliament may make
law, but may not declare law so as to overrule a decision of the court. (See:
S T Sadiq v. State Of Kerala [2015] 4 SCC 400, Indira Nehru Gandhi v. Shri Raj E
Narain [1975] 2 SCC 159, and Medical Council of India v. State of Kerala (Writ
Petition (C) No. 178 & 231 of 2018)). The facts and decisions in these cases
will be examined in turn.
[76] In S T Sadiq v. State of Kerala (supra), the State Government issued
notices to and acquired ten cashew factories pursuant to the Kerala Cashew F
Factories (Acquisition) Act 1974. The ten factories challenged the
acquisition in court. The Indian Supreme Court held that the notice issued
was not in compliance with the statutory requirements and ordered the State
Government to hand the factories back to the respective owners. The State
Government then enacted the Kerala Cashew Factories Acquisition
G
(Amendment) Act 1995. Section 6 of the Amendment Act which declared
that the factories specified in the Schedule shall vest in the Government with
effect from the date stated, notwithstanding any judgment or order of court,
and notwithstanding any other law. The Schedule contained only the ten
cashew factories.
H
[77] The Indian Supreme Court held that s. 6 was unconstitutional in
directly seeking to upset a final judgment of the court. Nariman J said this
at para. [13]:
I
[2019] 5 CLJ Alma Nudo Atenza v. PP & Another Appeal 815
A [1993] 2 SCC 363 at para. [37], S R Bhagwat v. State of Mysore [1995] 6 SCC
16 at para. [18]). The same principle was succinctly elucidated by the Indian
Supreme Court in the case of In the Matter of Cauvery Water Disputes Tribunal
[1993] Supp 1 SCC 96 (II) at para. [76]):
The principle which emerges from these authorities is that the legislature
B can change the basis on which a decision is given by the Court and thus
change the law in general, which will affect a class of persons and events
at large. It cannot, however, set aside an individual decision inter parties
and affect their rights and liabilities alone. Such an act on the part of the
legislature amounts to exercising the judicial power of the State and to
functioning as an appellate court or tribunal.
C
[86] The distinction between amending a law to remove its defects and
overruling a decision of the court was explained in Cheviti Venkanna Yadav
v. State of Telangana [2017] 1 SCC 283:
This plenary power to bring the statute in conformity with the legislative
D intent and correct the flaw pointed out by the court can have a curative
and neutralising effect. When such a correction is made, the purpose behind the
same is not to overrule the decision of the court or encroach upon the judicial turf,
but simply enact a fresh law with retrospective effect to alter the foundation and
meaning of the legislation and to remove the base on which the judgment is founded.
This does not amount to statutory overruling by the legislature. In this manner,
E the earlier decision of the court becomes non-existent and unenforceable
for interpretation of the new legislation. (emphasis added)
[87] On a careful reading of the three Indian authorities relied upon by
learned counsel for the appellants, we are of the view that those cases do not
render any assistance to the appellants’ broad proposition. The common
F striking feature of those cases cited is that the impugned laws had the direct
effect of overruling the outcome of the respective particular decisions by the
courts. Hence, these Indian cases are readily distinguishable from the facts
of the present appeals.
[88] In fact, as indicated earlier on s. 37A does not purport to overrule the
G
decision of the Federal Court in Muhammed bin Hassan (supra). The finality
of the decision in that case in respect of the rights and liabilities of the parties
is unaffected. The effect of inserting s. 37A is to alter generally the law upon
which that decision was based. As such premised on the principles of law
distilled from the other cases which differed for the three cases cited by
H learned counsel for the appellants, such an amendment is a permissible exercise
of legislative power and does not encroach into the realm of judicial power.
I
818 Current Law Journal [2019] 5 CLJ
A (c) where double presumptions are applied, it has been held in Muhammed
bin Hassan (supra) that the burden on the appellants to rebut both
presumptions on the balance of probabilities is oppressive, unduly
harsh, and unfair;
(d) section 37A offends the requirement of fairness housed under arts. 5 and
B 8 of the FC;
(e) the right in art. 5(1) is absolute and cannot be derogated;
(f) the doctrine of proportionality does not form part of the common law
of England. It arose from the jurisprudence of the European Court of
C Human Rights; and
(g) the Federal Court in PP v. Gan Boon Aun [2017] 4 CLJ 41; [2017] 3 MLJ
12 had erred in holding that the right to a fair trial and the presumption
of innocence under art. 5 may be qualified by reference to the principle
of proportionality.
D
[95] In response, the learned Deputy Public Prosecutor for the respondent
submitted that:
(a) the right to a fair trial is implied in art. 5(1) of the FC;
(b) there are exceptions to the general rule that the accused bears no onus
E
of proof, for there are limits to what the prosecution can reasonably be
expected to prove in certain situations;
(c) there is no prohibition on presumptions in principle, provided such
presumptions satisfy the test of proportionality. (See: Gan Boon Aun
F
(supra) and Ong Ah Chuan v. Public Prosecutor [1980] 1 LNS 181; [1981]
1 MLJ 64);
(d) even where double presumptions are invoked under s. 37A of the DDA,
pursuant to s. 182A(1) of the Criminal Procedure Code the duty remains
on the prosecution to prove its case beyond a reasonable doubt based on
G all adduced and admissible evidence;
(e) the imposition of presumptions rebuttable by an accused on a balance
of probabilities strikes a balance between the public interest in curbing
crime and the protection of fundamental rights; and
(f) section 37A of the DDA, being of general application to all persons
H
under like circumstances, does not offend the right to equality under
art. 8 of the FC.
I
820 Current Law Journal [2019] 5 CLJ
Together they are the source of all other rights. Other rights may be
limited, and may even be withdrawn and then granted again, but their
ultimate limit is to be found in the preservation of the twin rights of life
and dignity. These twin rights are the essential content of all rights under
the Constitution. Take them away, and all other rights cease. I
[2019] 5 CLJ Alma Nudo Atenza v. PP & Another Appeal 821
A [100] Since the right to life is “the most fundamental of human rights”, the
basis of any State action which may put this right at risk “must surely call
for the most anxious scrutiny” (per Lord Bridge in Bugdaycay v. Secretary of
State for the Home Department [1987] AC 514 at p. 531). The courts’ role is
given added weight where the right to life is at stake.
B [101] “Law”, as defined in art. 160(2) of the Federal Constitution read with
s. 66 of the Interpretation Acts 1948 and 1967, includes the common law of
England. The concept of rule of law forms part of the common law of
England. The “law” in art. 5(1) and in other fundamental liberties provisions
in the FC must therefore be in tandem with the concept of rule of law and
C NOT rule by law. (See: Lee Kwan Woh (supra) at para. [16]; Sivarasa Rasiah
v. Badan Peguam Malaysia & Anor [2010] 3 CLJ 507; [2010] 2 MLJ 333 at
para. [17]). (emphasis added).
[102] It has been remarked that the phrase ‘rule of law’ has become
meaningless thanks to ideological abuse and general over-use.
D (See: H Barnett, Constitutional and Administrative Law, 2nd edn. (London:
Cavendish Publishing, 1998) at p. 90). Different models of the rule of law
have been adopted in different jurisdictions. (See: V V Ramraj, “Four Models
of Due Process” in OUP and New York University School of Law 2004,
I.CON Vol. 2, No. 3 at 492-524). It is perhaps opportune and necessary for
E us to outline what is generally meant by the rule of law.
[103] A central tenet of the rule of law is the equal subjection of all persons
to the ordinary law. (See: A V Dicey, An Introduction to the Study of the Law
of the Constitution, 10th edn. (London: Macmillan, 1959) at p. 202). People
should be ruled by the law and be able to be guided by it. Thus, the law must
F be capable of being obeyed.
[104] “Law” must therefore satisfy certain basic requirements, namely:
(a) it should be clear;
(b) sufficiently stable;
G
(c) generally prospective;
(d) of general application;
(e) administered by an independent Judiciary; and
H (f) the principles of natural justice and the right to a fair trial are observed.
[105] These requirements of “law” in a system based on the rule of law are
by no means exhaustive. While the precise procedural and substantive
content of the rule of law remains the subject of much academic debate, there
is a broad acceptance of the principles above as the minimum requirements
I
822 Current Law Journal [2019] 5 CLJ
of the rule of law. (See: J Raz, The Rule of Law and its Virtue (1977) 93 LQR A
195; L Fuller, The Morality of Law (New Haven: Yale University Press,
1964); T Bingham, The Rule of Law (London: Penguin Books, 2011)).
[106] It is therefore clear that the “law” in the proviso “save in accordance
with law” does not mean just any law validly enacted by Parliament. It does
not authorise Parliament to enact any legislation under art. 5(1) contrary to B
the rule of law. While the phrase “in accordance with law” requires specific
and explicit law that provides for the deprivation of life or personal liberty
(see: In Re Mohamad Ezam Mohd Nor [2002] 5 CLJ 156; [2001] 3 MLJ 372
at p. 378), nevertheless such law must also be one that is fair and just and
not merely any enacted law however arbitrary, unfair, or unjust it may be. C
Otherwise that would be rule by law.
[107] The “law” thereof also refers to a system of law that incorporates the
fundamental rules of natural justice that formed part and parcel of the
common law of England. And to be relevant in this country, such common
law must be in operation at the commencement of the FC. Further, any D
system of law worthy of being called just must be founded on fundamental
values. “The law must be related to the … fundamental assessments of
human values and the purposes of society” (per Viscount Simonds, Shaw
v. DPP [1962] AC 220 at p. 268). As persuasively argued by Lord Bingham,
the rule of law requires that fundamental rights be protected, (see: Bingham, E
The Rule of Law (London: Penguin Books, 2011 at pp. 66-68). It is also taken
for granted that the “law” alluded to would not flout those fundamental rules.
As Lord Diplock stated in no weak terms, to hold otherwise would render
the purported entrenchment of fundamental liberties provisions in the FC
“little better than a mockery”. (See: Ong Ah Chuan (supra) at p. 670). F
[108] We pause at this juncture to note that s. 37A of the DDA begins with
the phrase “notwithstanding any written law or rule of law”. For the
avoidance of doubt, the words “rule of law” in s. 37A refer to implied
ancillary rules, such as the rules of procedure or evidence. (See: FAR
Bennion, Statutory Interpretation: A Code, 3rd ed. (London: Butterworths, G
1997) at p. 805). It does not purport to exclude the rule of law as a legal
concept. If it were to be interpreted otherwise then that would be a rule by
law and could not be within the ambit of the term ‘law’ in art. 5(1) of the
FC and hence unconstitutional. It must also be emphasised here that the
principle of the rule of law, being a constitutional fundamental, cannot be H
abrogated by mere statutory words.
[109] Accordingly, art. 5(1) which guarantees that a person shall not be
deprived of his life or personal liberty (read in the widest sense) save in
accordance with law envisages a State action that is fair both in point of
procedure and substance. In the context of a criminal case, the article I
enshrines an accused’s constitutional right to receive a fair trial by an
impartial tribunal and to have a just decision on the facts. (See: Lee Kwan
Woh (supra) at para. [18]).
[2019] 5 CLJ Alma Nudo Atenza v. PP & Another Appeal 823
A [110] It has been declared as well by this court that the fundamental
principle of presumption of innocence, long recognised at common law, is
included in the phrase “in accordance with law”. (See: Gan Boon Aun (supra)
at paras. [14]-[15]). Indeed, the presumption of innocence is a “hallowed
principle lying at the very heart of criminal law”, referable and integral to
B the right to life, liberty, and security. (See: R v. Oakes [1986] 1 SCR 103 at
para. [29]). The famous statement of Viscount Sankey LC in Woolmington
v. Director of Public Prosecutions [1935] AC 462 at p. 481 is regularly quoted
as a starting point in affirming the principle:
Throughout the web of the English Criminal Law one golden thread is
C always to be seen, that it is the duty of the prosecution to prove the
prisoner’s guilt subject to what I have already said as to the defence of
insanity and subject also to any statutory exception ... No matter what
the charge or where the trial, the principle that the prosecution must prove
the guilt of the prisoner is part of the common law of England and no
attempt to whittle it down can be entertained. (emphasis added)
D
[111] It is pertinent to note that Viscount Sankey’s proviso of “any statutory
exception” was pronounced in the context of a legal system based on
Parliamentary sovereignty. Whereas in our jurisdiction, a provision of law,
although it may be in the form of a proviso, is not rendered constitutionally
valid if it “would subvert the very purpose of the entrenchment of the
E
presumption of innocence” in the FC. (See: R v. Oakes (supra) at para. [39]).
As such, in determining its constitutionality the substantive effect of a
statutory exception must be considered.
[112] Yet at the same time, it must also be taken into account that despite
the fundamental importance of the presumption of innocence, there are
F
situations where it is clearly sensible and reasonable to allow certain
exceptions. For instance, a shift on onus of proof to the defence for certain
elements of an offence where such elements may only known to the accused.
But it is not to say that in such instance the prosecution is relieved of its
burden to establish the guilt of an accused beyond reasonable doubt. In other
G
words, it is widely recognised that the presumption of innocence is subject
to implied limitations. (See: Attorney-General of Hong Kong v. Lee Kwong-Kut
[1993] AC 951 at p. 968). A degree of flexibility is therefore required to
strike a balance between the public interest and the right of an accused
person.
H
[113] In State v. Coetzee [1997] 2 LRC 593 the South African Constitutional
Court speaking through Sachs J provided clear justification on the need to do
the balancing enquiry between safeguarding the constitutional rights of an
individual from being ‘convicted and subjected to ignominy’ and heavy
sentence and ‘the maintenance of public confidence in the enduring integrity
I and security of the legal system’. Reference to the prevalence and severity
824 Current Law Journal [2019] 5 CLJ
of a certain crime therefore does not add anything new or special to the A
balancing exercise. The perniciousness of the offence is one of the givens,
against which the presumption of innocence is pitted from the beginning, not
a new element to be put into scales as part of the justificatory balancing
exercise. If this were not so, the ubiquity and ugliness argument could be
used in relation to murder, rape, car-jerking, housebreaking, drug-smuggling, B
corruption … the list is unfortunately almost endless, and nothing would be
left of the presumption of innocence, save, perhaps, for its relics status as a
doughty defender of rights in the most trivial of cases’.
[114] Hence, this is where the doctrine of proportionality under art. 8(1)
becomes engaged. C
[115] But before we deal with art. 8(1) in relation to the proportionality test,
it is perhaps apposite to note here that in Muhammed bin Hassan (supra) this
court held that to read the presumption of possession in sub-s. 37(d) “into
ss. 37(da) so as to invoke against an accused a further presumption of
trafficking (ie presumption upon presumption) would not only be ascribing D
to the phrase ‘found in possession’ in s. 37(da) a meaning wider than it
ordinarily bears but would also be against the established principles of
construction of penal statutes and unduly harsh and oppressive against the
accused. (emphasis added).
E
[116] Meanwhile, when enacting s. 37A, Parliament did not find it
necessary to amend the wordings of sub-s. 37(da) in particular the word
‘found’ therein. As such, the view given by this court on the word ‘found’
in Muhammed bin Hassan (supra) is still valid.
Article 8 And The Doctrine Of Proportionality F
[117] When interpreting other provisions in the FC, the courts must do so
in light of the humanising and all-pervading provision of art. 8(1). (See:
Dr Mohd Nasir Hashim v. Menteri Dalam Negeri Malaysia [2007] 1 CLJ 19;
[2006] 6 MLJ 213 at para. [8], approved in Badan Peguam Malaysia
v. Kerajaan Malaysia [2008] 1 CLJ 521; [2008] 2 MLJ 285 at para. [86]; Lee G
Kwan Woh (supra) at para. [12]). Article 8(1) guarantees fairness in all forms
of State action. (See: Tan Tek Seng v. Suruhanjaya Perkhidmatan Pendidikan &
Anor [1996] 2 CLJ 771; [1996] 1 MLJ 261). The essence of the article was
aptly summarised in Lee Kwan Woh (supra) at para. [12]:
The effect of art 8(1) is to ensure that legislative, administrative and H
judicial action is objectively fair. It also houses within it the doctrine of
proportionality which is the test to be used when determining whether
any form of state action (executive, legislative or judicial) is arbitrary or
excessive when it is asserted that a fundamental right is alleged to have
been infringed.
I
[2019] 5 CLJ Alma Nudo Atenza v. PP & Another Appeal 825
I
826 Current Law Journal [2019] 5 CLJ
(k) the test depends upon the circumstances of the individual case. The
justifiability of any infringement of the presumption of innocence
cannot be resolved by any rule of thumb, but on examination of all
the facts and circumstances of the particular provision as applied in
the particular case; F
(l) the task of the court is never to decide whether a reverse burden
should be imposed on a defendant, but always to assess whether
a burden enacted by Parliament unjustifiably infringes the
presumption of innocence; and
(m) security concerns do not absolve member states from their duty to G
observe basic standards of fairness. (emphasis added)
[122] The doctrine of proportionality was likewise implicit in the Hong
Kong approach to statutory presumptions in criminal law. Referring to
statutory exceptions to the presumption of innocence, the Privy Council
explained in Lee Kwong-Kut (supra) at pp. 969-970: H
Some exceptions will be justifiable, others will not. Whether they are
justifiable will in the end depend upon whether it remains primarily the
responsibility of the prosecution to prove the guilt of an accused to the
required standard and whether the exception is reasonably imposed,
notwithstanding the importance of maintaining the principle which article I
[2019] 5 CLJ Alma Nudo Atenza v. PP & Another Appeal 827
A 11(1) enshrines. The less significant the departure from the normal principle, the
simpler it will be to justify an exception. If the prosecution retains responsibility for
proving the essential ingredients of the offence, the less likely it is that an exception
will be regarded as unacceptable. In deciding what are the essential ingredients, the
language of the relevant statutory provision will be important. However what will
be decisive will be the substance and reality of the language creating the
B offence rather than its form. If the exception requires certain matters to
be presumed until the contrary is shown, then it will be difficult to justify
that presumption unless, as was pointed out by the United States
Supreme Court in Leary v. United States [1969] 23 L. Ed. 2d 57, 82, ‘it can
at least be said with substantial assurance that the presumed fact is more
likely than not to flow from the proved fact on which it is made to
C depend.’ (emphasis added)
[123] Useful guidance can also be gleaned from the case of R v. Oakes (supra).
The Canadian Supreme Court held that, in general, “a provision which
requires an accused to disprove on a balance of probabilities the existence
of a presumed fact, which is an important element of the offence in question,
D
violates the presumption of innocence”, at para. [57]. The fact that the
standard required to disprove the presumed fact is only on the balance of
probabilities does not render the reverse onus clause constitutional, at
para. [58].
H Nature Of Presumptions
[132] To determine the effect of s. 37A, it is helpful first to consider
generally the nature of presumptions. A true presumption takes effect when,
upon the proof of one fact (the basic fact), the existence of another fact
(presumed fact) is assumed in the absence of further evidence.
I (See: C Tapper, Cross & Wilkins Outline of the Law of Evidence, 6th edn.
830 Current Law Journal [2019] 5 CLJ
[134] Such is the case with the two presumptions in question in these
appeals. For the presumption under sub-s. 37(d), a person’s custody or control
of a thing containing a dangerous drug, proved as a fact, (the basic fact) is relevant
to, but not decisive of, his possession and knowledge of the dangerous drug
which need not be proved but merely deemed (the presumed fact). D
[135] As for the presumption under sub-s. 37(da), a person “found” (which
denotes the need first for an affirmative finding based on the evidence
adduced) to be in possession of drugs exceeding a stipulated weight has a
logical bearing on the inference of trafficking.
E
[136] The presumptions are largely a matter of logical inference. Indeed,
even without the statutory presumption under sub-s. 37(da), a person caught
in the act of conveying a quantity of drugs much larger than is likely to be
needed for his own consumption would give rise to an irresistible inference
that he was transporting them for the purpose of trafficking, in the absence F
of any plausible alternative explanation. (See: Ong Ah Chuan (supra) at
p. 667; s. 2 of the DDA).
[137] The presumptions in s. 37 are rebuttable. The phrase “until the
contrary is proved imposes a legal burden on an accused to prove on a
balance of probabilities that he was not in possession and had no knowledge G
of the drug (sub-s. 37(d)), or that he was not in possession up to the statutory
limit in weight of the drug for the purpose of trafficking (sub-s. 37(da)) (See:
R v. Oakes (supra) at para. [24]). The weight of evidence required to rebut the
presumption would depend on the circumstances of each case. For instance,
as a matter of common sense, the larger the quantity of the drugs involved H
the stronger the inference that it was intended for the purpose of trafficking
and thus the more convincing the evidence needed to rebut it. (See: Ong Ah
Chuan (supra) at 668).
I
[2019] 5 CLJ Alma Nudo Atenza v. PP & Another Appeal 831
A [138] The word “shall” in both subsections indicates that each of the
presumptions is mandatory in nature. However, the word “may” in s. 37A
suggests that the cumulative use of double or multiple presumptions is
discretionary. But, just because it is discretionary, it does not ipso facto escape
a constitutionality scrutiny.
B [139] The effect of s. 37A on the operation of the two presumptions is
therefore as follows:
(a) once the prosecution proves that an accused had the custody and control
of a thing containing a dangerous drug, the accused is presumed to have
possession and knowledge of the drug under sub-s. 37(d). The ‘deemed
C
possession’, presumed by virtue of sub-s. 37(d), is then used to invoke
a further presumption of trafficking under sub-s. 37(da), if the quantity
of the drug involved exceeds the statutory weight limit.
(b) section 37A thus permits a “presumption upon a presumption” (as aptly
D described in Muhammad bin Hassan (supra) at p. 291).
(c) as such, for a charge of drug trafficking, all that is required of the
prosecution to establish a prima facie case is to prove custody and control
on the part of the accused and the weight of the drug. The legal burden
then shifts to the accused to disprove the presumptions of possession and
E knowledge (sub-s. 37(d)) and trafficking (sub-s. 37(da)) on a balance of
probabilities.
[140] As to the legal burden upon an accused to rebut a presumption and the
risk attached to it, the case of R v. Whyte [1988] 51 DLR (4th) 481 at p. 493
(in a passage adopted by Lord Steyn in R v. Lambert (supra) at para. [37]) is
F instructive. Dickson CJ said this:
The real concern is not whether the accused must disprove an element
or prove an excuse, but that an accused may be convicted while a
reasonable doubt exists. When that possibility exists, there is a breach of
the presumption of innocence. The exact characterisation of a factor as
G an essential element, a collateral factor, an excuse, or a defence should
not affect the analysis of the presumption of innocence. It is the final
effect of a provision on the verdict that is decisive. If an accused is
required to prove some fact on the balance of probabilities to avoid
conviction, the provision violates the presumption of innocence because
it permits a conviction in spite of a reasonable doubt in the mind of the
H trier of fact as to the guilt of the accused.
[141] Hence, for the above reasons, we are of the view that s. 37A prima facie
violates the presumption of innocence since it permits an accused to be
convicted while a reasonable doubt may exist.
I
832 Current Law Journal [2019] 5 CLJ
I
[2019] 5 CLJ Alma Nudo Atenza v. PP & Another Appeal 833
A [147] But the most severe effect, tantamount to being harsh and oppressive,
arising from the application of a “presumption upon a presumption” is that
the presumed element of possession under sub-s. 37(d) is used to invoke the
presumption of trafficking under sub-s. 37(da) without any consideration that
the element of possession in sub-s. 37(da) requires a ‘found’ possession and
B not a ‘deemed’ possession. The phrase ‘any person who is found in
possession of’ entails an affirmative finding of possession based on adduced
evidence. (See: Mohammed bin Hassan (supra)).
[148] Section 37A was legislated to facilitate the invocation of the two
presumptions yet there was no amendment to sub-s. 37(da). As such and as
C discussed earlier on in this judgment, to invoke a presumption of trafficking
founded not on proof of possession (which currently the subsection demands)
but on presumed possession based on proof of mere custody and control,
would constitute a grave departure from the general rule that the prosecution
is required to prove the guilt of an accused beyond a reasonable doubt.
D [149] Further, the application of what may be termed the “double
presumptions” under the two subsections gives rise to a real risk that an
accused may be convicted of drug trafficking in circumstances where a
significant reasonable doubt remains as to the main elements of the offence.
In such circumstance, it cannot be said that the responsibility remains
E primarily on the prosecution to prove the guilt of the accused beyond a
reasonable doubt.
[150] Based on the factors above – the essential ingredients of the offence,
the imposition of a legal burden, the standard of proof required in rebuttal,
and the cumulative effect of the two presumptions – we consider that s. 37A
F constitutes a most substantial departure from the general rule, which cannot
be justified and disproportionate to the legislative objective it serves. It is far
from clear that the objective cannot be achieved through other means less
damaging to the accused’s fundamental right under art. 5. In light of the
seriousness of the offence and the punishment it entails, we find that the
G unacceptably severe incursion into the right of the accused under art. 5(1) is
disproportionate to the aim of curbing crime, hence fails to satisfy the
requirement of proportionality housed under art. 8(1).
[151] Accordingly, we hold that s. 37A is unconstitutional for violating
art. 5(1) read with art. 8(1) of the FC. The impugned section is hereby struck
H down.
[152] Having struck down s. 37A of the DDA, the question now is to
determine the position of the appellants. The learned trial judges in these two
appeals invoked both the presumptions in finding the guilt of the appellants.
Since there was no challenge to the use of a single presumption in these
I
appeals, we are of the view that the invocation of sub-s. 37(d) by the learned
trial judges did not cause any miscarriage of justice to the detriment of the
appellants.
834 Current Law Journal [2019] 5 CLJ
[153] Hence, we hereby quash the convictions and sentences of both the A
appellants under s. 39B of the DDA. As we have no reasonable doubt on the
guilt of the appellants for possession of the drugs based on the evidence
adduced, we hereby substitute their respective convictions to one of
possession under s. 12(1) and punishable under s. 39A(2) of the DDA.
B